No. 83-479 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

JOANN KYRISS, in her capacity 

as Conservator for Frank Templin, 

Plaintiff and Respondent, 

STATE OF MONTANA, 

Defendant and Respondent, 

and 

WGER A. GANFIELD, M.D. and 

LEONARD fl. BENJAMIN, M.D., 

Defendants and Appellants. 

APPEAL FROM: District Court of the Third Judicial District, 

In and For the County of Powell, 

The Honorable Robert Boyd, Judge Presiding. 

COUNSEL OF RECORD: 

For Appellants: 

James A. Robischon argued, Butte, Montana 

For Respondents: 

Hoyt & Trieweiler; Terry Trieweiler argued for 

Kyriss, Whitefish, Montana 

Sharon Morrison, (Kyriss), Helena, Montana 

Allen B. Chronister argued for State, Agency 

Legal Services, Helena, Montana 

Submitted: June 13, 1985 

Decided: October 3, 1985 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is a medical malpractice case in which the District 

Court, Third Judicial District, Powell County, based on jury 

verdict, entered judgment against Drs. Roger A. Ganfield and 

Leonard M. Benjamin. The doctors appeal. 

The principal issue in the case is whether the District 

Court properly instructed the jury on the issue of causation 

using the "legal cause" or "substantial factor" instruction 

instead of the historic "proximate cause" instruction. We 

determine tha.t the court instructed the jury properly. 

The second principal issue is an outgrowth of the first 

issue, for the doctors contend that there was not sufficient 

competent evidence of proximate cause to justify a verdict 

against them. We determine the evidence is sufficient. 

Other issues raised by the doctors include their 

contention that they were employees, not independent 

contractors, of the State of Montana and thus entitled to be 

immunized from plaintiff's judgment under section 2-9-305, 

MCA; and a further issue respecting the jury's possession of 

highlighted copies of the plaintiff's prison medical record 

and color photographs of his right leg. We resolve these 

issues against the doctors also. 

Frank Templin is characterized on the prison records as 

marginally mentally retarded and an alcoholic. He was born 

in 1922 and finished the 8th grade in ten years. In 1947, he 

enlisted in the Army from which he received an honorable 

discharge. He re-enlisted in 1950 and served a tour of duty 

in the Korean War, and was honorably discharged in 1953 for a 
second time. In his Korean duty, he suffered frostbite on 

both of his feet while working as a heavy equipment operator 

in building roads. 

After the service, he worked in saw mills and as a farm 

laborer. He drank heavily however in the 1970s, was 

considered an alcoholic and supported himself with welfare. 

In 1973, Templ-in forged a $30 check drawn on a friend's 

account to purchase wine. After 141 days in the Lincoln 

County Jail, he entered a plea of guilty of forgery. He had 

no prior juvenile record and no prior felony conviction, and 

on March 7, 1974, he received a three-year deferred sentence. 

One of the conditions of the deferred sentence was that he 

complete an alcoholic treatment course at Galen, Montana, and 

report regularly to a parole officer. 

Templin completed the treatment at Galen on May 1, 1974, 

and then requested permission to transfer his supervision to 

Minnesota, where he hoped to find farm work. He was given 

permission. Two weeks after his departure from Montana, when 

he had not reported to his Minnesota supervisor, he was 

declared a probation violator. A warrant was issued for his 

arrest, he was returned to the District Court in Lincoln 

County and there he was sentenced to 10 years imprisonment in 

the Montana State Prison at Deer Lodge. 

His incarceration at the prison was uneventful. He had 

no conduct problems, was classified as minimum security risk, 

did his job assignments, did not need supervision, and was 

dependable. He was eligible for parole on January 11, 1976 

but was apparently denied parole for failure to submit an 

acceptable work program following parole. Therefore he 

remained a prisoner at the Montana State Prison, where 

eventually he sought treatment from Leonard Benjamin, M.D., 
the prison doctor, for an ingrown toenail on September 7, 

1977. 

We will set out the history of his medical treatment 

more in detail when we discuss the sufficiency of the 

evidence issue. It is enough to say now that following the 

removal of his toenail, over a course of several weeks, and 

several visits to the prison nurses, the prison doctors, and 

stops at the prison infirmary, it was decided that he should 

be released to the Veterans Administration Hospital in Helena 

for treatment of what was obviously a gangrenous condition of 

his right foot. The Veterans Administration Hospital would 

not accept him unless he was paroled. His parole was 

effected, he entered the Veterans Administration Hospital, 

and there the lower portion of his right leg was amputated on 

December 20, 1977. 

LEGAL CAUSE 

During the trial the doctors contended, and they contend 

on appeal, that Frank Templin was suffering from a 

pre-existing condition of arteriosclerosis of the blood 

vessels of the legs, particularly of the right leg, and that 

it was the arteriosclerosis which brought about the eventual 

amputation of his right leg. 

Templin contended that the doctors were negligent in 

their medical treatment extended. to him. There was also an 

issue of whether the State of Montana itself had exercised 

its duty to provide reasonable and ordinary care for the life 

and health of its prisoner. 

The jury was given a special verdict form, which 

required it to find with respect to each defendant whether 

that particular defendant was negligent, and whether his or 
its negligence contributed as a legal cause of injury or 

dama.ge to the plaintiff. Those questions related to 

defendants Roger Ganfield, Leonard Benjamin, Francis 

Bertoglio and the State of Montana. The jury returned a 

verdict that Roger Ganfield and. Leonard Benjamin were 

negligent, and that their negligence contributed as a legal 

cause of iniury or damage to the plaintiff. The jury found 

in favor of the defendants Francis Bertoglio and the State of 

Montana. 

With respect to causation, the District Court instructed 

the jury as follows: 

Instruction No. 13 

There may be more than one legal cause of an 

injury. When negligent conduct of two or more 

persons contributes concurrently as legal causes of 

an injury, the conduct of each said persons is a 

legal cause of the injury regardless of the extent 

to which each contributes to the injury. 

Instruction No. 14 

A legal cause of an injury is a cause which is a 

substantial factor in bringing about the injury. 

Instruction No. 18 

If you find that any negligent medical practice on 

the part of the Defendants substantially reduced 

the chances for saving Plaintiff's leg, then such a 

reduction in chance can be a part of the legal 

cause as defined in this instruction. 

The District Court refused the defendant's offer of a 

"proximate cause" instruction, which would have instructed 

the jury that proximate cause is one which in a natural and 

continuous sequence and unbroken by any new independent cause 

produces the injury and without which the injury would not 

have occurred. 

The doctors contend that in refusing the proximate cause 

instruction, and granting one for legal cause, the District 

Court is establishing a new standard. The doctors rely on 
our decision in Sztaba v. Great Northern Railway Co. (1966) , 

147 Mont. 185, 411 P.2d 379, where we said that the test most 

generally employed determining causation is the "but for" 

test. The doctors also point to Detert v. Lake County (~ont. 

1984), 674 P.2d 1097, where we stated that the plaintiff in a 

tort case must prove a breach of duty as a proximate cause of 

the injury, and to Hendrickson v. Neiman (Mont. 1983), 665 

P.2d 219, where we stated that to hold a party negligent per 

se for a violation of the statute, the violation must 

constitute a. proximate cause of the injury resulting in 

damage. 

Thus the doctors place squarely before us an issue of 

grave importance, namely, is this Court so inseparably wedded 

to the "but for" rule that in tort cases the liability of the 

defendant must always be found in terms of proximate cause? 

We answer no. 

We reached this issue shortly ago in Rudeck v. Wright, 

(Cause No. 84-84, Decided August 27, 1985), - Mont. , 

- P.2d - . There we said in part: 

. . . if two or more causes concur to bring about 

an event, and any one of them, operating alone, 

would have been sufficient to cause the identical 

result, some other test is needed. In such cases 

it is quite clear that each cause has in fact 

played so important a part in producing the result 

that responsibility should be imposed upon it; and 

it is equally clear that neither can be absolved 

from that responsibility upon the ground that the 

identical harm would have occurred it, or there 

would be no liability at all. 

The "substantial factor" rule was developed 

primarily for cases in which application of the 

"but for" rule would allow each defendant to escape 

responsibility because the conduct of one or more 

others would have been sufficient to produce the 

same result . . . 

In this case, the problem has a slightly different 

context: the doctors argue that a pre-existing condition of 
arteriosclerosis caused the result. On that point the 

doctors seek to escape liability. In Rudeck, we showed that 

the "but for" rule is one which states that the defendant's 

conduct is the proximate cause of the event if the event 

would not have occurred but for that conduct. The inadequacy 

of the "but for" rule for the purpose of this case should be 

obvious. Under the "but for" rule, it could be argued, and 

indeed was argued in the District Court and here on appeal, 

that the amputation would have occurred in any event, and not 

only "but for" the negligent treatment by the doctors. 

If two causes concur to bring about an injury and either 

cause would have been sufficient for the result, some test 

for tort liability other than the "but for" rule is needed. 

In the case of two such concurring causes, the proximate 

cause instruction fails because a jury so instructed would 

face an impossible task: It cannot then find the negligence 

of one party a cause "without which the injury would not have 

occurred." It was in grappling with this facet of tort 

causation that courts developed the "substantial factor" 

test. And-erson v. Minneapolis, St. Paul and Sault Ste. Marie 

Railway Co. (Minn. 1920), 179 N.W. 45 affld., 185 N.W. 299 

(1921). 

Our adoption of the "substantial factor" test as 

applicable to cases where two or more actors or factors may 

be substantial causes of a harm is relatively late in coming. 

The rule appeared in the first Restatement of Torts, § 431, 

and is repeated in Restatement (Second) of Torts, § 431. 

Other western states have found the requirement of causation 

to be satisfied where the negligent act complained of is a 

substantial factor is causing plaintiff Is injury. Alvey v. 

Pioneer Oil Field Services (Alaska 1982), 648 P.2d 599; 
Blackledge v. Harrington !Or. 19811, 624 P.2d 119, rev'd. 634 

P.2d 243 (1981); Thomsen v. Rexall Drug and Chemical Company 

(1965), 235 Cal.App.2d 755, 45 Cal. Rptr. 642; Mitchell v. 

Branch (Hawaii 1961), 363 P.2d 969; Phelps v. Woodward 

Construction Co. (Wyo. 19491, 204 P.2d 179. 

Our adoption of the "substantial factor" test is in 

acc~rd with dicta found in Moen v. Peter Kiewit and Sons Co. 

(Mont. 1982), 655 P.2d 482, 490, and Kiamas v. Mon-Kota, Inc. 

(Mont. 1982), 639 P.2d 1155. 

Sufficiency - of Evidence 

The doctors contend that there was not sufficient 

competent evidence of proximate cause to justify a verdict 

against them in favor of the plaintiff. They state that 

although Templin's expert witness, Dr. Tom E. Norris, offered 

evidence of improper medical treatment by the defendant 

doctors, at no time did Dr. Norris testify that any of the 

allegedly negligent acts or omissions of the doctors were the 

proximate cause of the injury to Templin. The defendant 

doctors then rely on the argument that proof of proximate 

cause is necessary to establish liability. Since the "but 

for" test is one of exclusion, the doctors contend that their 

conduct is not the cause of the injury, if the event would 

not have occurred without it. 

In support of their contentions, defendant doctors point 

to the cross-examination of Dr. Manuel White, who testified 

that the blockage in Templin's artery was caused by 

arteriosclerosis, and that this is a progressive disease, 

which may have existed as early as two years prior to the 

toenail incident. The doctor further stated that it was the 
interruption of the blood suppl-y at the popliteal artery of 

the right leg that caused the d.evelopment of gangrene. 

We have already indicated above that in this case it was 

proper to apply the "substantial factor" test and not the 

"but for" rule to determine the liability. Nonetheless 

because an issue is raised as to the sufficiency of the 

evidence, we set out from the viewpoint of Templin the 

testimony which supports the verdict in favor of Templin. 

It is first necessary to understand that under a 

contract with the prison authorities, it was a duty of Dr. 

Benjamin, or someone from his office, to provide medical care 

to prison inmates and that this obligation extend-ed to Frank 

Templin during the times involved in this case. 

Dr. Benjamin first examined Templin in 1974 and got from 

Templin then a history that Templin had frostbite on his feet 

while in the service in Korea. 

On July 18, 1977, Templin was seen by a nurse at the 

prison, complaining that his leg was going to sleep when he 

was lying in bed, sitting, or walking too much. The doctor 

testified that these symptoms are signs of circulatory 

deficiency similar to claudication, which is pain in the 

muscle or part of the body which lacks circulation. 

On September 7, 1977, Nurse Kathleen Scalise saw Templin 

at the old prison medical station. She found him in a great 

deal of pain with a reddened and swollen foot. His right 

great toe was red and inflamed and tender to touch. She 

advised him to place his name on the next day's sick call 

when Dr. Benjamin was scheduled to be there. 

On September 8, 1977, Dr. Benjamin examined Templin's 

right foot. Templin was complaining of a very sore toe. 

Benjamin determined that Templin had a circulatory 
insufficiency in his right lower leg. The doctor was una-ble 

to find a pedal pulse. There were atrophic changes in the 

right big toenail and venous swelling of the foot. Dr. 

Benjamin prescribed removal of the toenail on the following 

day. 

On September 9, 1977, Dr. Ganfield, who is the associate 

of Dr. Benjamin, removed the toenail and sent Templin back to 

prison. The doctor admitted that the prison environment was 

not sanitary and that he could at that time have admitted 

Templin either to the prison infirmary or to a hospital, or 

he could have referred Templin to a vascular surgeon. 

On September 10, 1977, a licensed practical nurse, 

Jackie Beatty, saw Templin several times during the day. He 

was suffering pain for which she gave him a pain pill. She 

cleansed his toe, and applied an ointment. She observed a 

small amount of bleeding on the surface of his right great 

toe, but no signs of infection. She saw him again on 

September 11, 17, and 18 for observation and treatment. 

During that time he was still being housed at the old prison. 

On September 20, 1977, Dr. Benjamin prescribed an 

antibiotic for Templin because he observed an indication of 

infection in the area of the right great toe. On September 

25, 1977, Nurse Beatty observed Templin again. At this time 

his right large toe was black, and there was drainage. She 

soaked his foot, recorded the condition of the foot, and 

reported the condition to the doctor. Nurse Scalise also saw 

him at the medical station, and observed that he was walking 

with difficulty, that his toe was black and that there was a 

reddened area over his right foot. He seemed unable to place 

any weight on his foot. 
On September 26, 1977, he was again seen by Dr. 

Benja.min, at the old prison medical station, and he decided 

that Templin should be admitted to the prison infirmary. 

After three days, Templin was discharged from the infirmary 

by Dr. Benjamin and went back to the prison on September 29. 

On September 30, 1977, Templin was again seen by Nurse 

Beatty. Again his right toe was reddened, swollen and dark 

black in color. However, red streaks were starting up the 

right foot above the great toe. The nurse understood. that 

the redness indicated infection. There was also a purulent 

drainage, which also indicates infection. 

Dr. Ga.nfield saw Templin in his office on September 30, 

1977. Dr. Ganfield described his foot as having "mild 

swelling, with several cuts noted on the ball of his foot and 

heel. " Dr. Ganfield did not require Templin to be 

hospitalized, nor send him to the infirmary, nor did he 

consult with any surgeons or vascular specialists respecting 

the condition of the foot, nor order a culture to determine 

the type of infection present. Again, Templin returned to 

the old prison. 

On October 1, 1977, Nurse Beatty again saw Templin at 

the old prison medical station. He still had purulent 

drainage around the upper part of his right great toe, and it 

was reddened a.nd inflamed. She saw him again on the next 

day, October 2, 1977, made the same observations, a.nd 

indicated he was having difficulty trying to walk. She 

personally notified Dr. Ganfield of t.he signs of infection on 

the right great toe. Dr. Ganfield changed the antibiotic, 

but did nothing further. 

Dr. Benjamin saw Templin October 4, 1.977, and at that 

time knew that Templin had an infection in his right great 
toe. He did not however change his course of treatment. Dr. 

Benjamin also saw Templin on October 11, 1977. 

After a lapse of three weeks, Dr. Benjamin again saw 

Templin on November 4, 1977. At that time he admitted 

Templin to the infirmary. Nurse Beatty observed that his 

right foot was reddened, his toe black with purulent 

drainage, and also now noticed a foul odor coming from his 

right great toe. Dr. Benjamin testified that on this date, 

Templin showed definite evidence of gangrenous changes in his 

toe and heel. Dr. Benjamin then d.ecided that Templin should 

he released to the Veterans Administration Hospital in 

Helena, but that hospital would not accept Templin because he 

was not paroled. 

Glen McElderry, a licensed practical nurse, worked at 

the prison and saw Templin in the month of November. Two 

days after Templin's admission to the infirmary, McElderry 

noticed a red streak going up Templin's right leg which 

seemed to come from the infection in his toe. The doctors 

were kept advised of Templin's condition. 

On November 4, 1977, however, Templin had been sent to 

the Powell County Hospital in Deer Lodge so that a culture 

could be taken from his big toe. This wa.s done at Dr. 

Bertoglio's instruction. Dr. Bertoglio diagnosed his 

condition as an infected toe with a vascular insufficiency 

and the culture showed a staph aureus infection. That 

information was communicated to Dr. Benjamin. 

By November 17, 1977, McElderry determined by measuring 

that the length of the red streak on Templin's foot and leg 

was 8 inches. He felt that Templin's infection was getting 

worse. McElderry testified that Templin showed more 

deterioration than improvement while he was in the infirmary. 
Templin was hospitalized at the Veterans Administration 

Hospital in Helena on November 23, 1977. There he was 

examined by Dr. Manuel White, a specialist in vascular and 

thoracic surgery. In his examination of Templin, he found 

good pulses in both groins, but no pulses in his feet or 

behind his knees. He also observed a dark discoloration of 

the great toe of Templin's right foot. There was moderate 

swelling of both feet which was worse on the right, a missing 

toenail on the right toe, and a foul odor. Dr. White ordered 

an arteriogram. This type of X-ray film revealed that the 

blood circulation in Templin's right leg was blocked at the 

popliteal and the lower portion of the superficial femoral 

arteries, that is, behind the knee and the lower part of the 

thigh. He determined that Templin was suffering from 

arteriosclerosis, which is a narrowing of the arteries by 

thickening of the walls. The process of arteriosclerosis had 

been going on at least two years. He found, however, that 

the actual blockage in this case had resulted from blood 

clots which had developed relatively recently. Dr. White 

determined that surgery was necessary in order to relieve the 

clogged vessels and to re-establish circulation. He operated 

on Templin on December 12, 1977, and removed the blood clots. 

He felt he had restored good circulation to the area where 

the clots had been removed. The gangrenous condition which 

he observed, however, was not reversed. It became necessary 

on December 20, 1977, for Dr. White to amputate below the 

knee of Templin's right leg. The amputation was necessary 

because of gangrene and pain. 

Dr. Tom Norris, plaintiff's medical expert, reviewed 

Templin's medical records. He expressed an opinion that for 

a patient who had Templin's symptoms on September 7, 1977, 
and who had. also indications of poor circulation in his right 

leg, the vascular problem should be dealt with first and then 

the toenail problem. The reason is that surgery to an 

extremity where there is a significant vascular lessening 

presents a greater risk and the tissue is more prone to 

complications due to the possibility of infection. An 

infection in an area where blood supply is lessened will 

produce complications more grave than if there are no 

vascular problems. 

Dr. Norris testified after a toenail is removed from a 

patient in Templin's condition that the following care must 

be more cautious than usual. The patient should not be 

returned to an unsanitary environment. A determination 

should be made of what bacteria is causing the infection so 

as to treat the infection with appropriate antibiotics. 

Aggressive treatment of the infection is necessary. If the 

infection continues to worsen and the circulatory problems 

are contributing to the worsening, it would be prudent to 

have vascular surgical consultation. Because of the nurse's 

observations on September 25, the patient should have been 

hospitalized, careful evaluation of the infection by culture 

should have been made, and intensive therapy with antibiotics 

and consultation of a vascular surgeon should have occurred. 

The time loss of two months almost certainly lessened the 

chance of preventing amputation, and may have led to the 

necessity of taking a larger part of the leg than earlier 

treatment would have allowed. By November 4, under the 

condition of Templin's leg a.t that time, the foot probably 

could not have been saved, but it might have been possible to 

complete the amputation at the ankle level. No standard of 

medical care would make it reasonable to leave Templin in the 
infirmary without vascular consultation for 19 days after 

November 4, 1977. 

We will not repeat all of the admissions with respect to 

the care made by Dr. Benjamin and Dr. Ganfield. They readily 

admitted that persons with vascular problems are more prone 

to infections after surgery, that careful management of 

persons with vascular complications is necessary and that 

persons with gangrenous conditions appearing need careful 

management. 

When the sufficiency of evidence to support a jury 

verdict is attacked, the function of this Court is to 

determine if there is substantial credible evidence in the 

record to support the verdict. We review the evidence in the 

light most favorable to the party that prevailed in the 

District Court, the presumption on appeal being that the 

determination of the trial court is correct. Gunnels v. Hoyt 

(Mont. 1981), 633 P.2d 1187; Groundwater v. Wright (1979), 

180 Mont. 27, 588 P.2d 1003; Koger v. Halverson (1952), 125 

Mont. 560, 242 P.2d 273. 

There is substantial credible evidence in this record to 

support the verdict of liability against the doctors in this 

case. 

IV 

Highlighted Copies 

The doctors contend that the trial court abused its 

discretion in allowing highlighted copies of Frank Templin's 

medical records to go to the jury in its deliberation. 

During the deposition of McElderry, as he was referring 

to medical records of Templin, he was instructed by the 

examining counsel to highlight portions of the record for his 
testimony. These highlighted instruments were admitted into 

evidence. 

There were other copies of medical records not 

highlighted in evidence which were also provided to the jury 

during deliberation. The doctors objected to the highlighted 

records going to the jury and contend that if the court had 

kept the highlighted copies out, the jury would have been 

deprived only of the highlighting and not of any of the 

information contained in the medical records. 

The supervision of the trial process is a matter in the 

hands of the district judge. We find no manifest abuse of 

discretion under this issue on the doctors' contention. It 

is plain that under section 25-7-404, MCA, upon retiring to 

deliberation, the jurors may take with them all papers which 

have been received as evidence in the cause, except 

depositions or papers which ought not to be taken from the 

person having them in possession. The statutory direction is 

clear. 

Doctors also claim patent error because the District 

Court allowed photographs of Templin's right leg to go to the 

jury rather than have Templin exhibit the leg to the jury. 

No objection was made at trial, so we do not find error on 

this point. 

v 

Independent Contractors 

(We treat this issue although the State contends that a 

proper notice of appeal was not timely filed as to the 

judgment in favor of the State. In any event, the issue must 

be resolved for the State.) 

The doctors contend that they were not independent 

contractors, but were employees of the State of Montana, and 
as such were entitled to the protection of Fnununity provided 

by employees of the State under section 2-9-101(2), MCA. 

The particular statutory provision follows: 

"Employee" means an officer , employee, or servant 

of a governmental entity, including elected or 

appointed officials, and persons acting on behalf 

of the governmental entity in any official capacity 

temporarily or permanently in the service of the 

governmental entity whether with or without 

compensation, but the term employee shall not mean 

a person or other legal entity while acting in the 

capacity of an independent contractor under 

contract to the governmental entity to which parts 

1 through 3 apply in the event of a claim. 

It is the contention of the doctors that they were 

employees in this case because they were hired by the State 

of Montana and. they performed services or functions under the 

direction and control of the employer. 

The facts relied. upon by the doctors are that Dr. 

Renja.min was the only doctor employed by the State of Montana 

for a number of years and. that he was employed as a prison 

physician. The State of Montana provided Dr. Benjamin with 

the facilities and a place for examining and treating the 

Montana State Prison inmates. Nursing and other medical 

supportive services were provided by the State to assist Dr. 

Benjamin in his treatment and examination of the inmates. 

Medications prescribed by Dr. Benjamin were filled and 

administered through the pharmacy at the prison. 

The doctors contend that although the prison did not 

control the actual treatment that Dr. Benjamin gave to 

various inmates, the prison did control and direct the 

manner, the time and the availability of the medical services 

provided to the inmates. The prison establishes days of the 

week when prisoners are able to obtain medical services and 

the time of day that the services are to be provided. Any 

arrangements concerning the release of inmates for treatment 
outside of the prison had to be made through the prison 

administration. 

Dr. Benjamin was paid for his medical services on a 

salary basis and not by fee for each particular service 

rendered, and was classified as a Physician IV for the 

Montana State Prison and the Department of Administration 

Personnel on October 31, 1974. The prison could terminate 

Dr. Benjamin's services if it desired, and Dr. Benjamin 

participated in the Montana Public Employees Retirement 

System. 

Dr. Ganfield, who had no contract with the State, 

contends he was involved in the treatment of the plaintiff on 

various dates when he acted in the role of a loaned servant 

to the medical personnel at the Montana State Prison. See 

Kish v. Montana State Prison (1973), 161 Mont. 297, 505 P.2d 

891. 

On the other hand, Templin points out that no other 

person than Dr. Benjamin's firm, the Deer Lodge Clinic, 

provided regular medical care to prison inmates during 1977. 

If specialists were required, they had to be recommended 

through Dr. Benjamin's office. He retained the right to 

refer inmates at his discretion for additional specialized 

care and he was permitted to perform services that were 

necessary in the infirmary or at the Powell County Hospital, 

depending upon his discretion. The criteria for referring 

prisoners to other specialists were no different than for 

referring any other patient in the community. The standard 

of care that he was expected to provide was the same as the 

standard of care for any other member of the community. 
The District Court determined that the doctors were 

"independent contractors" and did not meet the definition of 

employee. 

First, Dr. Ganfield does not meet the test for a "loaned 

servant" established in Kish v. Montana State Prison, 161 

Mont. at 297, 505 P.2d at 891. In whose business was he 

engaged? Although the prison has a direct and compelling 

interest in the health of the prison inmates, it is apparent 

from the record that Dr. Ganfield was conducting an 

independent business as a physician and surgeon in Deer 

Lad-get and that incidental to his independent medical 

practice, he had occasion to treat Templin. Under whose 

control, domination or direction was Dr. Ganfield? Again, 

the record is clear that in administering medical services to 

Templin, Dr. Ganfield relied on his own expertise in the 

medical field and on the opinion of Dr. Benjamin, another 

practitioner in the medical field. It is certain that the 

State of Montana could not control, dominate or direct what 

kinds of medical services, what diagnoses, and what 

treatments he should accord Templin. 

Almost for the same reasons that the loaned servant 

doctrine does not apply to Dr. Ganfield, Dr. Benjamin must be 

considered an "independent contractor." In Standard Chemical 

J!lanufacturing Company v. Employment Security Division, 

Department of Labor (1980), 185 Mont. 241, 605 P.2d 610, 612, 

we set forth tests for determining whether persons were 

independent contractors or employees for the purpose of 

unemployment compensation tax. The conditions which must 

exist to determine that personal services are not part of an 

employment are that the individual is free from control. or 

direction over the performance of his services, in fact and 
under his contract; that the services are outside the usual 

course of the business for which the services are performed; 

and that the person performing the services is customarily 

engaged in an independently established trade, occupation, 

profession or business. 

The medical services rendered to Templin by Dr. Benjamin 

were completely within his medical discretion, without 

direction or control from the prison authorities; the prison 

authorities are not, nor could they be, engaged in the 

practice of medicine. Dr. Eenjamin was customarily engaged 

in an independently established profession as a practicing 

member of a medical clinic in Deer Lodge. 

We hold that Dr. Benjamin was an independent contractor 

in the case at bar, and that Dr. Ganfield was not a "loaned 

servant." Each is directly responsible, and the State is not 

responsible on their behalf for the medical services the 

doctors provided to Templin. 

VI 

Cross-Appeal 

Templin cross-appeals on two grounds, that the District 

Court should have directed a change of venue in this cause, 

and that the Court improperly refused to tax the costs of 

depositions used in the trial. 

The cross-appellant Templin has asked us to affirm the 

judgment obtained by him in the District Court, sitting in 

Deer Lodge County, as against the contentions of the 

appellant doctors. We have determined that affirmation is 

proper. The issue, therefore, of venue in the District Court 

is no longer before us, since we do not order a retrial. 

After the verd,ict Templin attempted to tax, in his costs 

bill against the doctors, his expenses incurred for the 
depositions of Drs. Tom Norris, Leonard Benjamin and Roger 

Ganfield. On a motion by the doctors to tax costs, the costs 

of depositions of the doctors were refused by the District 

Court. 

Templin contends that the depositions were used in the 

trial of the case and accordingly the costs of taking 

depositions are properly awarded to the prevailing party. 

Morrison-Maierle, Inc. v. Selsco (1980), 186 Mont. 180, 606 

P.2d 1085; Pfizer v. Madison County (1973), 161 Mont. 261, 

505 P.2d 399. 

The doctors respond that the depositions were all 

discovery depositions, and that the videotaped deposition of 

Dr. Norris was stipulated to by the doctors as a matter of 

convenience for the reason that Dr. Norris could not 

otherwise be present at the trial. The doctors contend that 

the depositions were not "used" in the trial-, and that the 

District Court so found, although Templin contends that the 

depositions were used for purposes of impeachment. 

Our problem j.n resolving this issue is that we do not 

have before us a transcript of the proceedings in the 

District Court and accordingly have no record on which to 

make a decision. We have no basis, therefore, on which to 

disturb the determination of costs by the District Court. 

VI I 

The judgment of the District Court is affirmed in all 

respects. Costs on appeal to respondent. 
We Concur: 

,.,,-7 

Chief Justice 

District $.tCdge; 'sitting 

for Mr. Justice Frank B. 

Morrison, Jr. 
Mr. Justice L. C. Gulbrandson, dissenting. 

I respectfully dissent. 

In my view, the defendant's proposed instruction on 

"proximate cause" should have been given to the jury. 

The "substantial factor'' test was clearly developed for 

the situation where two causes concur to bring about an 

event, and either one of them, operating alone, would have 

been sufficient to cause the identical result. That special 

situation obviously does not occur often and is not present 

in this case. 

The majority appear to have adopted the rule as set 

forth in the Restatement (Second) of Torts, (5 431, but have 

ignored the requirements of 55 430, 433, 433A and 434. 

Restatement (Second) of Torts, 1965 Edition. 

Section 433, with comment (a) reads as follows: 

Considerations Important in Determining 

Whether Negligent Conduct is Substantial 

Factor in Producing Harm. 

The following considerations are in 

themselves or in combination with one 

another important in determining whether 

the actor's conduct is a substantial 

factor in bringing about harm to another: 

(a) the number of other factors which 

contribute in producing the harm and the 

extent of the effect which they have in 

producing it; 

(b) whether the actor's conduct has 

created a force or series of forces which 

are in continuous and active operation up 

to the time of the harm, or has created a 

situation harmless unless acted upon by 

other forces for which the actor is not 

responsible; 

(c) lapse of time. 

See Reporter's Notes. 

Comment : 

a. The considerations stated in this 

Section are important in three 
particulars. First, they are important 

as considerations which the jury should 

take into account when the substantial 

factor question is left to them. Second, 

they are important to the trial judge in 

so framing his instructions as to call 

the jury's attention to such of these 

considerations as are pertinent to the 

facts which the jury might reasonably 

infer from the evidence. Third, they are 

important to a court in determining 

whether upon the evidence there is room 

for a reasonable difference of opinion as 

to whether the defendant's negligence is 

a substantial factor in bringing about 

the other's harm. 

Court's instruction no. 14, "A legal cause of an in-jury 

is a cause which is a substantial factor in bringing about 

the injury" was the only definitional instruction given the 

jury, and, in my opinion, is incomplete and inadequate. 

The case of Alvey v. Pioneer Oilfield Services (Alaska 

1982), 648 P.2d 599, has been cited in the majority opinion 

as supporting authority for the "substantial factor" rule. 

That case cites Sharp v. Fairbanks North Star Borough (Alaska 

1977), 569 P.2d 178, where the following is set forth on page 

Among the elements adopted by this court 

as necessary to make out a claim for 

relief based on negligence is "[a] 

reasonable close causal connection 

between the conduct and the resulting 

injury. . . [proximate cause]. " More 

specifically, negligent conduct may 

properly be found to be a "legal cause" 

of a plaintiff's injury if the negligent 

act "was more likely than not a 

substantial factor in bringing about 

[the] injury." This test was further 

clarified in State v. Abbott, where we 

said: 

"Normally, in order to satisfy the 

substantial factor test it must be shown 

both that the accident would not have 

happened 'but for' the defendant's 

negligence and that the negligent act was 

so important in bringing about the injury 

that reasonable men would regard it as a 

cause and attach responsibility to it. I' 
The citations to earlier Alaska cases indicate that the 

Supreme Court of Alaska has adopted the Restatement (Second) 

as set forth in 5s 430, 431, 432, 435 and others, 

I would agree if this Court were to adopt SS 430 

through 435, Restatement (Second) of Torts, 1965 Edition, and 

would reverse and remand for a new trial with appropriate 

jury instructions. '/ ,9